Juliana v. United States: Does the Constitution Guarantee a Livable Planet for Our Kids?

Summary:

An examination of the legal questions raised in Juliana v. United States, and what's next for the litigants.

Leading climatologist Dr. James Hansen has warned that carbon dioxide concentrations must decrease by 6 percent a year by 2020 to return to 350 parts per million. Frustrated with lackluster federal action to accomplish this, last year, 21 youth plaintiffs and Dr. Hansen sued the federal government for allowing and encouraging increasing carbon emissions over the past 50 years, despite knowing about global climate change. The plaintiffs claim the federal government violated their constitutional due process and public trust rights and demand that the government design and implement a plan to slash carbon emissions.

Juliana v. United States youth plaintiffs after a hearing on March 9, 2016, in Eugene, Ore. Photo: Our Children’s Trust

The Federal District Court of Oregon in November 2016 denied a motion to dismiss and allowed the plaintiffs’ case to move forward. It noted the action is of a different order than the typical environmental case because it “alleges that defendants’ actions and inactions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”

The Due Process Clause of the Fifth Amendment to the United States Constitution bars the federal government from depriving a person of “life, liberty, or property” without “due process of law.” In Juliana v. United States, plaintiffs allege defendants violated their due process rights by “directly caus[ing] atmospheric C02 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs”; “knowingly endanger[ing] Plaintiffs’ health and welfare by approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion”; and, “[a]fter knowingly creating this dangerous situation for Plaintiffs … continu[ing] to knowingly enhance that danger by allowing fossil fuel production, consumption, and combustion at dangerous levels.”

When the government infringes a “fundamental right,” a reviewing court applies strict scrutiny. Substantive due process “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Because the court concluded that plaintiffs alleged a violation of their fundamental rights, it did not address whether youth or future generations are suspect classifications for equal protection purposes, which would have provided a separate basis for strict scrutiny judicial review.

The court examined whether the plaintiffs had a fundamental liberty right in a “climate system capable of sustaining human life.” Referencing the recent Supreme Court case upholding same-sex marriage, the court had “no doubt” that plaintiffs’ liberty right is “fundamental to a free and ordered society.”

The court cautioned that it was not transforming any pollution or climate change into a violation of a fundamental constitutional right. The “Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.” Plaintiffs adequately alleged such a claim and may proceed to trial on the due process issues.

If the plaintiffs win, will the court order the Trump Administration to take specific action to mitigate climate change? The Due Process Clause does not typically impose on the government an affirmative obligation to act, subject to limited exceptions. Here, the court held the plaintiffs properly alleged a cause of action that the case meets the “danger creation” exception because the government’s failure to limit third-party C02 emissions “places a person in peril in deliberate indifference to their safety[.]”

In order to prevail at the next phase at summary judgment or trial on the danger-creation due process claim, the plaintiffs will need to show (1) the government’s acts created the danger to the plaintiff; (2) the government knew its acts caused that danger; and (3) the government with deliberate indifference failed to act to prevent the alleged harm.

The court similarly held in favor of the plaintiffs on their public trust doctrine claims. The starting point for the court was the concept that “public trust” refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers. It traced the doctrine back to the 4th century A.D. Institutes of Justinian, and reasoned that the sovereign’s public trust obligations prevent it from “depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens.”

Instead of focusing narrowly on navigable waters, the court described this as “the natural resources trust,” and stated that it operates according to basic trust principles, which impose upon the trustee a fiduciary duty to “protect the trust property against damage or destruction.” The government trustee owes this duty equally to current and future beneficiaries of the trust.

The big legal questions this case raised and the court addressed are whether the oceans are a public trust asset; the federal government has public trust obligations; federal statutes have displaced any common-law public trust claims; and plaintiffs have a right of action to enforce public trust obligations. Spoiler alert: the court answered in the affirmative to all but one of these.

Although the court did not foreclose the atmosphere being part of the public trust, it focused its decision instead on the plaintiffs alleged violations of the public trust doctrine in connection with the territorial sea, to which the federal government holds title to the submerged lands between three and 12 miles from the coastlines of the United States. Because a number of plaintiffs’ injuries relate to the effects of ocean acidification and rising ocean temperatures, the court held they have adequately alleged harm to public trust assets.

Rejecting prior interpretations of the meaning of the Supreme Court’s statements in PPL Montana, the court concluded the federal government has public trust obligations. It sorted through conflicting holdings from the D.C., Massachusetts, and Northern California Districts, and was ultimately persuaded there is a federal public trust for the “public assets” the federal government holds in trust, such as the territorial seas.

To the question of whether federal statutes have displaced federal public trust claims, akin to the holding in AEP that the federal Clean Air Act displaced common law tort claims to seek abatement of carbon dioxide, the court distinguished the public trust claims from tort claims. “Public trust claims are unique because they concern inherent attributes of sovereignty. The public trust imposes on the government an obligation to protect the res of the trust. A defining feature of that obligation is that it cannot be legislated away. Because of the nature of public trust claims, a displacement analysis simply does not apply.”

Finally, the court held that the plaintiffs’ public trust claims are properly categorized as substantive due process claims, and thus, the Fifth Amendment provides the right of action in this case.

By rejecting the motion to dismiss, the ruling has allowed the case to move forward to discovery, summary judgment, and trial. The litigants have a steep road ahead in what will prove to be complicated discovery and questions for proof. Will President Obama settle with the plaintiffs before he leaves office? If this occurs, a federal court will be asked to approve and oversee the decree, and thus be in a position to compel the Trump administration to honor the climate protections agreed upon in the court order. If not, the Trump administration will face the trial of the century (currently scheduled for trial in summer or fall 2017) and the world will be watching. For a new administration that has declared its intent to dismantle existing U.S. climate policy, this case will be a major challenge.

Professor Melissa K. Scanlan is associate dean of the Environmental Law Program and director of the Environmental Law Center at Vermont Law School. Prior to joining VLS, she was the University of Wisconsin Law School’s Water Law and Policy Scholar, where she led a pilot project on interdisciplinary water research and teaching. She was also a lead consultant involved in launching the Center for Water Policy at the University of Wisconsin-Milwaukee’s School of Freshwater Sciences 2011.
phone: 802-831-1066
email: MSCANLAN@vermontlaw.edu